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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

The Department of Justice, Federal Bureau of Prisons (BOP), U.S. Penitentiary,
Atlanta, Georgia (Employer) and Local 1145, American Federation of Government
Employees, AFL-CIO (Union) filed separate requests for assistance with the
Federal Service Impasses Panel (Panel) pursuant to the Federal Employees
Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et
seq., to resolve an impasse arising from the Employer's decision to terminate a
4-10 compressed work schedule (CWS) for employees in the Recreation Department
(RD).

After investigation of the
requests for assistance, the Panel determined that the dispute should be
resolved through an informal conference by telephone with Panel Member Mark A.
Carter. The parties were advised that if no settlement were reached during the
informal conference, Member Carter would report to the Panel on the status of
the dispute, including the parties' final positions and his recommendations for
resolving the impasse. After considering this information, the Panel would take
final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its
regulations.

Pursuant to the procedural
determination, Member Carter conducted an informal conference by telephone with
the parties on May 9, 2005, but a voluntary settlement of the impasse was not
reached. The Panel has now considered the entire record, including the parties'
pre-conference submissions, and Member Carter's recommendation for resolving the
dispute.

BACKGROUND

The
Employer's mission is
to protect society by confining criminal offenders in the controlled
environments of prisons and community-based facilities that are safe, humane,
and appropriately secure. The U.S. Penitentiary in Atlanta, Georgia is high
security facility that houses approximately 2,600 inmates. The Recreation
Department has both indoor and outdoor facilities, including a Gymnasium,
Leisure Center, and hobby shop, and services about 700 to 800 inmates per day.
The Union represents about 544 employees, at grades GS-5 through -11, WG-5
through -9, and WS-7 through -11, who are part of a consolidated nationwide unit
of about 23,000. The parties are covered by a master collective bargaining
agreement (MCBA) that expired on March 8, 2001; its provisions will remain in
effect until a successor agreement is implemented.

ISSUE AT IMPASSE

In accordance with section
6131(c)(3)(B) of the Act, the issue in dispute is whether the findings on which
the Employer bases its determination to terminate the 4-10 CWS in the RD is
supported by evidence that the schedule has caused an adverse agency impact.1/

POSITIONS OF THE PARTIES

1. The Employer's Position

The Panel should find that
the 4-10 CWS in the RD is causing an adverse agency impact "in all three
areas delineated" in the Act: "diminished service, increased costs and
decreased productivity in programs." Since its inception in October 2002,
"there has been a decrease in programs, excessive staff absences and a
general decline in the operational integrity of the [RD]." Recent events
involving the RD staff's seven full-time employees have created a number of
vacancies, two of which cannot be filled until the incumbents, who are on
extended absence pending medical retirement, have their retirement status
"approved and completed." The size of the institution and the
"complexity of the mission," however, require that there be a minimum
of four staff scheduled to work on any given day. Although there is only one
employee currently using the CWS, it is impossible to meet this minimum staffing
requirement while the CWS is in effect.

The CWS also "does not
promote a sound use of staff time." In this regard, those on the CWS begin
work at 9:30 a.m., 2½ hours before the Gym or Leisure Center are scheduled to
open, and before the majority of programs offered in the RD begin. As a result,
the cost associated with CWS employees' "idle time exceeds $77,000 per
year." In addition, the Gym and Leisure Center are closed 50 and 70 percent
of the time, respectively, "due to staff absences." Staff coverage has
been further reduced by the elimination of two security posts within the RD
because of the recent implementation of a BOP-wide budget initiative referred to
as the Mission Critical Custody Roster. Thus, the lack of flexibility created by
the CWS does not permit management to "provide coverage for all recreation
program needs," which makes inmates reluctant to enroll in programs. Its
termination, and a return to the traditional 5-day workweek, "will provide
adequate staff coverage and consistent programs for the inmate population."

During 2003 and 2004, when
the CWS was in effect, sick leave increased by 14 percent over prior years.
Moreover, the number of times staff "called in sick on holidays when
scheduled to work doubled in 2004." Consequently, with the staff shortage,
scheduled events were cancelled and starting dates delayed. Inmate participation
in leisure activities has declined, and "inmate morale is negatively
affected." In conclusion, the CWS does not meet the staffing needs of the
RD and "severely impedes" management's ability to accomplish the RD's
mission.

2. The Union's Position

The Panel should find that
the Employer has not met its burden under the Act of demonstrating that the 4-10
CWS has caused an adverse agency impact. As required by BOP policy, the CWS was
reviewed after a 6-month trial period and "there were no concerns raised by
the Agency," nor have more recent routine reviews "identified any
concerns." With respect to the 2½ hours of "idle time" it now
alleges to be caused by the CWS, management apparently is counting such things
as the lunch break, which is "idle whether staff are on a compressed
schedule or not and will not change." More importantly, management has
assigned employees duties during the 9:30 a.m. to noon time period (i.e., the
shakedown of the entire Recreation Yard and to stand "main line" in
the inmate dining hall), and could choose to assign them other duties as well.
Moreover, contrary to the Employer's claim, inmate enrollment in leisure
programs has not declined. Rather, the figures the Employer relies on "are
simply due to a failure of departmental staff to upload the proper data into the
computer system," which is not a CWS problem but a departmental one.

The Employer's allegations
regarding the dollar costs of the CWS are based on "manipulated data."
In fact, the "idle time" in question "has been used the way it
was agreed to be used by the parties prior to the CWS's inception." The
real problem in the RD "is not coverage of staff but a shortage of staff at
this time." This is because there currently are only three Recreation
Specialists assigned to the RD, one of whom is on a CWS. In essence,
"management can not propose any schedule with three people assigned that
will give flexibility to provide staff coverage and consistent programs for the
inmate population."

In the area of diminished
services, the Employer cites statistics that are "simply manipulated to
show a decline in programs." It does not, however, provide the underlying
documentation that would prove its statistics are accurate. An examination of
the sign up forms for inmate sports programs, for example, does not support the
Employer's claim. With regard to unscheduled leave use, the Employer's figures
actually support the conclusion that RD staff has used less unscheduled leave in
2004 than in 2002. The real reason that the Gym and Leisure Center are closed as
often as management has asserted is the failure of the Recreation Supervisor to
administer sick and annual leave properly. Finally, the fact that the Employer
proposed its own CWS alternative during negotiations implies that a CWS
"can and does work in this department." As there currently is only one
employee in RD using the CWS, the Union is willing to agree not to add any new
employees to the CWS without the Employer's agreement. This would also allow the
Employer to ensure that the "lone employee makes good use of his time while
on CWS."

CONCLUSIONS

Under section 6131(c)(2) of
the Act, the Panel is required to take final action in favor of the agency
head's (or delegatee's) determination to terminate a CWS if the finding on which
the determination is based is supported by evidence that the schedule has caused
an "adverse agency impact." As its legislative history makes clear,
Panel determinations under the Act are concerned solely with whether an employer
has met its statutory burden on the basis of "the totality of the evidence
presented."2/

Having carefully considered
the evidence presented, including the representations of the parties during the
informal conference, we conclude that the Employer has demonstrated that the
4-10 CWS in the RD is causing an adverse agency impact by diminishing the level
of services furnished to the public. In this regard, the Friday regular day off
(RDO) of the Recreation Specialist currently on the CWS is preventing the RD
from maintaining the level of service to inmates that was provided prior to the
implementation of the CWS. Put another way, the employee's availability an
additional day per week will increase the number of inmates who can participate
in leisure activities. As this is an important element in maintaining the safety
of the facility, we shall order that the 4-10 CWS be terminated.

ORDER

Pursuant to the authority
vested in it by the Federal Employees Flexible and Compressed Work Schedules
Act, 5 U.S.C. § 6131(c), the Federal Service Impasses Panel under §
2472.11(a)(2) of its regulations hereby orders the termination of the 4-10 CWS
program in the Recreation Department.

(2) a diminished
level of the services furnished to the public by the agency; or

(3) an increase in
the cost of operations (other than a reasonable administrative cost
relating to the process of establishing a flexible or compressed work
schedule).

The burden of
demonstrating that the CWS has caused an adverse agency impact falls on
the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12,
1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed.
June 30, 1982) (statement of Sen. Stevens).

This burden is not to be
construed to require the application of an overly rigorous evidentiary
standard since the issues will often involve imprecise matters of
productivity and the level of service to the public. It is expected the
Panel will hear both sides of the issue and make its determination on
the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong.,
2d Sess. at 15-16 (1982).